Reviving Refused AI Patent Applications in the UK
A fresh look at AI and software patent strategy after Emotional Perception
If an AI or software-related patent application was previously refused, abandoned or treated as unlikely to succeed in the UK, it may now be worth reviewing that position. The Supreme Court’s decision in Emotional Perception AI v Comptroller General changes the approach to exclusion analysis and may alter how some computer-implemented inventions should be assessed.
That does not mean every refused application can be revived or rescued, but it does mean that earlier assumptions should not always be taken at face value. Where a case was shaped by the former Aerotel approach, there may be scope to reconsider claim structure, technical framing and prosecution strategy in light of the new authority.
When a review may be worthwhile
A post-ruling review may be especially useful where:
- A UK examiner objected that the invention was excluded as a computer program “as such”.
- The invention involved AI, machine learning or artificial neural networks.
- The original application was drafted cautiously and underplayed the invention’s technical interaction or architecture.
- A client was advised not to proceed because UK software patentability was viewed as too restrictive.
- There is a wider international portfolio and the UK position now deserves to be reconsidered alongside EPC strategy.
What review should cover
A meaningful review should go beyond reading the refusal letter. It should examine the invention as a whole, the claim set, the way the technical problem was presented, whether important interacting features were filtered out too early, and how inventive step would now be argued under the post-Emotional Perception framework.
Hepworth Browne’s published materials on the decision emphasise the importance of the stage between the any-hardware threshold and the later patentability analysis, where the focus is on features contributing to the technical character of the invention. That makes it important to revisit how the invention’s technical contribution was originally identified and whether the case was argued in a way that still reflects current UK law.
Possible outcomes
Depending on the facts, the right next step may be different in each case. Some matters may justify renewed prosecution analysis, some may support a fresh filing strategy, and others may be better handled as part of a broader UK and EPO portfolio review.
The value of the review is strategic as well as legal. For businesses investing in AI, a stronger IP position can affect fundraising, licensing, enforcement posture and commercial confidence in the UK market.
Why Hepworth Browne
Hepworth Browne’s involvement in the Emotional Perception litigation means the firm is well placed to assess how the ruling may affect refused or difficult AI-related cases. The firm can review past objections, identify whether the changed legal framework makes a practical difference, and advise on the most commercially sensible next step.
For more information, please contact Bruce C. Dearling, Shareholder at Hepworth Browne. E-mail: bcd@hepworthbrowne.com
